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Future of the Workplace webinar 18 March – follow-up questions answered, Part 2 (UK)

Here are a couple more answers to questions coming up at our webinar last week:

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3. Do we still need to comply with collective consultation where we are not dismissing, only making contractual changes?

It all depends on how far you are intending to push the proposed changes to terms – in other words, what will be your answer to the employee who asks what happens if he doesn’t agree?  If your proposal is genuinely just a suggestion, to be withdrawn if people don’t like it, then no, there would be no need for collective consultation.  However, if the answer is that you cannot ultimately retain objectors and he would therefore face dismissal, then you may fall within the collective consultation rules by virtue of section 195 Trade Union and Labour Reform (Consolidation) Act 1992.  This says that for collective consultation purposes, “redundancy” includes circumstances where the dismissal is “for a reason not related to the individual concerned”.  That would include a failure to agree to the revised terms of employment.

Separately from the legal compulsion, it is of course also best ER practice anyway to consult about the drivers behind the proposed changes, not just the consequences of not agreeing to them.  In addition, whether or not you are dealing with numbers above the 20+ collective consultation threshold, some level of interaction in relation to proposed contractual changes is usually a pre-requisite to any subsequent dismissal for a refusal to accept them being fair at law in any case.

4. Our policy currently removes COVID-related absences from our Bradford factor sickness calculations – should we do the same for adverse reactions to the vaccine?

As a matter of law here, there isn’t any law here, but there is certainly some support available for the view that you should treat vaccine-related absence the same way. And also some arguments against.

At the start of the pandemic, Government guidance was that employers should consider disapplying normal sickness management processes where these would otherwise act as a disincentive to employees from doing the Right Thing in relation to self-isolation and shielding.  That argument has now been moved on to doing that Right Thing in relation to being vaccinated instead, but the principle remains the same – if I suffer an adverse reaction to a jab I don’t strictly have to have, and that may hasten some HR intervention or otherwise prejudice my standing within my employer, why should I take the risk?

With this in mind, new Acas guidance recommends that employers treat jab-related absences more favourably, not just in (i) allowing time off with full pay to have it, but also (ii) maintaining full pay (not any lesser sick pay rates) during any resulting absence; and (iii) not including that absence in determining any HR trigger point.

In my view (ii) and (iii) combined do represent an unfortunate opportunity for abuse – I may or may not genuinely feel too rough to work post-vaccine, but if you can get full pay for a couple of days off with no requirement for medical verification and no adverse impact on your absence record, who can say that they wouldn’t think about it?

To mitigate this, you could consider excluding just one day’s post-vaccine blues from your Bradford calculations.  Alternatively, a harder-line (though still completely defensible) argument would be that absence arising from those blues is no more or less discretionary than many other causes for which no such allowance is made.  The personal and public health benefits of the vaccine appear substantially unarguable and the statistical chances of suffering more than a headache and a briefly sore arm seem extremely limited.  The number of people genuinely likely to be put off this potentially life-saving vaccine by the fear that they might suffer some side-effect which fractionally impacts how their employer feels about them must be miniscule.  In the circumstances, Acas’ suggestion notwithstanding, you would be entirely within your rights (i) to pay sick pay only for such absences and (ii) to include vaccine-reaction days in your sickness monitoring and measurement systems.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 82
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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